Business Closings, Gatherings and Stay-at-Home Orders

On March 20, Gov. Andrew Cuomo announced his 10-point PAUSE plan “to assure uniform safety for everyone” during the coronavirus pandemic. Among other things, the policy closed all non-essential businesses statewide; halted most gatherings; and stated that infected residents should not leave their homes except to receive  healthcare, and then only after a telehealth visit.

Those violating the protocol could be given a warning or citation, fined up to $1,000, or even arrested. Businesses that didn’t adhere to certain guidelines could be closed.

But some New Yorkers wondered: Would there really be repercussions for ignoring the policy?

For at least one company, the answer was yes. In April, a western New York law firm received a cease-and-desist order for violating a mandate that allowed only essential businesses to conduct services in person. The firm has since filed a lawsuit against Gov. Cuomo and State Attorney General Letitia James alleging “abuse of power.”

And for individuals? “It’s brand new territory,” says Ameer Benno, a civil rights and personal injury attorney with Block O’Toole & Murphy. “I’m hard-pressed to think of another situation where people are essentially on a lockdown for this duration. This is really new ground for everybody, and the question of what could happen to you if you violate [the order] is one that we need to really unpack.”

Nomenclature is another.

Civil rights lawyer Ilann Maazel of Emery Celli Brinckerhoff Abady Ward & Maazel isn’t fond of the term “stay-at-home order,” for example. “There’ve been many orders from the governor, but a stay-at-home order means you can’t leave your house or your apartment,” he says. “And I’m unaware of any governor doing that. I think that sort of order would be legally dubious.” On the other hand, he adds, “Literal stay-at-home orders, I think, are possible and legal where someone has the virus and they have to be quarantined.”

Any order that mandates social distancing or prohibits large gatherings must be science-based, neutral and tailored to the specific issue, Maazel says. And such an emergency order won’t hold up without due process and sufficient notice given to the person or entity that is expected to comply.

Benno adds: “I think there’s a strong argument that we can socially distance ourselves and put safety protocols into place that will protect the health and safety of the community while still opening our doors. … And if there are people who are not following the rules, then we’ll have to deal with them on an individual basis.”

Maazel puts it this way: “It’s a shared social responsibility which, more than anything else, is going to get us out of this pandemic. And if we don’t have a shared sense of social responsibility, there’s no law that’s going to save us from ourselves.”

In June, Gov. Cuomo began lifting the shelter-in-place order, with some “nonessential” businesses, such as construction and manufacturing allowed reopening with social distancing measures. For many, it was too soon to tell what the legal fallout of violating the original, or revised, stay-at-home orders might be.

“Any time you put into action a protocol that’s never really been used before, you’re going to encounter factual situations that you couldn’t have anticipated. We’re still working out the kinks that come any time you try something new,” Benno says. “We’re going to have to take a look at all these variables, the science and the economics of it, and figure out a better way forward in case, God forbid, this happens again.”